One of the areas of immigration law that often flies under the radar is the work of the AILA Amicus Committee. But amicus work matters in cases across the country, so I wanted to share a bit about a recent brief the committee submitted and a bit about the case itself.

For those of you who don’t know much about amicus, other than the word is probably Latin, it is actually short for amicus curiae, or friend of the court. Organizations or people who know quite a bit about an issue that is being considered by an appellate court submit briefs that aim to offer insights useful to the appellate judges. This recent example is the case of Quichen He, an asylum seeker in Virginia petitioning the Virginia Supreme Court to recognize asylum seekers as domiciled within the state, in order for them to qualify for in-state tuition.  Ms. He, who is a derivative on her mother’s application for asylum, has lived in the United States since she was 12 years old, and has been waiting for more than 6 years for a final decision on her application.  She is currently scheduled for a hearing before the Arlington Immigration Court in 2021.  Ms. He has lived in the state of Virginia since shortly after arriving in the United States, and graduated high school in the state.  She is now a student at George Mason University.

The university classified her as an out-of-state student for tuition purposes, based solely on her immigration status as an asylum applicant.  Virginia law recognizes that an asylee, adjustment of status applicant, recipient of withholding of removal, TPS recipient, and holder of certain nonimmigrant visas can establish domicile, but explicitly excludes holders of certain temporary visas (including student visas) from establishing domicile and receiving in-state tuition.  The law is currently silent on the specific question of whether an asylum applicant can establish domicile in Virginia.  Notably, the Addendum published by the State Council of Higher Education for Virginia (SCHEV), which lists the categories of non-citizens who are eligible or ineligible for in-state tuition, states that “[i]t is not possible to include every nuance of the immigration process in this Addendum.  For the domicile eligibility status of any other Alien classification, visa, or documentation not covered by this Addendum, contact SCHEV or immigration counsel for guidance.”  Thus, it is clear that SCHEV knew their eligibility list could not be exhaustive, and left open the possibility that people who did not squarely fall into the eligibility/ineligibility lists published could still demonstrate domicile for tuition purposes.

The amicus brief explained the benefits given to asylum applicants (and eventually, to asylees), and compared them with those of other immigrants (such as DACA applicants and U visa applicants), in order to give context to Virginia Supreme Court on how asylum applicants become woven into their communities through legally-authorized work and by presumptive prohibition on travel outside of the country while their applications are pending.  The brief also emphasized the long adjudication times for both affirmative and defensive asylum applications in Virginia.  Finally, the brief explored the appellate options available to Ms. He if she does not prevail before the Immigration Court, and how these options could lawfully extend Ms. He’s presence in the United States (and by extension, in Virginia) for years to come.

The brief emphasized how these factors mean that Ms. He (and other like her in the asylum process) remain in Virginia for an extended period of time, laying down roots in her community, and becoming as much a part of Virginia’s resident population as other individuals recognized as domiciled in the state.  The brief also noted the high grant rates for asylum applications pending before the Arlington Immigration Court, in order to allow the Supreme Court to consider the high likelihood that Ms. He will be granted asylum, and remain a resident of the state of Virginia.

Working on this brief was particularly satisfying for me, as an attorney who frequently represents asylum seekers, and who understands the financial hardship they suffer during the often many years they wait for adjudication of their applications.  Even though the futures of young adults (like Ms. He) remain uncertain while their cases pend for years before USCIS and the Immigration Courts, they are as much a part of their states as other residents, and should be accorded the same treatment by their respective state university systems.